The opinion
Mr. Justice Boggs: I concur in the judgment of affirmance herein. I, however, doubt the soundness of the proposition that if the privilege given by law to decline to answer a question is availed of, a presumption having probative force as evidence arises that the answer would have been unfavorable. Mr. Greenleaf, in his work on Evidence, (vol. 1,15th ed. p. 600,) says: “If the witness declines to answer, no inference of the truth of the fact is permitted to be drawn from that circumstance.” In notes 10 and / to the text a number of authorities are cited in support of the conclusion announced by the learned author.
There is authority for the view that if a party to a civil action voluntarily becomes a witness in his own behalf and in the course of his examination claims his privilege to refuse to answer a material and, aside from the privilege, a competent question, the circumstance may be considered and given the like effect as a refusal to produce the evidence which it is in his power to produce. (Andrews v. Fry, 104 Mass. 234 .) But I think the weight of authority is against the position that an adverse party may be called to take the stand as a witness in behalf of his adversary, and his declination to answer a question which he has a legal right to refuse to answer be seized upon as proof of the truth of a supposed fact which it might be implied an answer to the question would disclose.